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Re: JMRI case -- Implementation of the Federal Circuit's Opinion
From: |
Alexander Terekhov |
Subject: |
Re: JMRI case -- Implementation of the Federal Circuit's Opinion |
Date: |
Thu, 08 Jan 2009 16:57:42 +0100 |
Alexander Terekhov wrote:
[...]
> Now, let's recall what two other practicing IP lawyers said back in
> August regrading the CAFC decision:
>
> 1. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
David A. Temeles, Jr. back in February 2008:
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15580
-------
Many of you may already be aware, but the Jacobsen v. Katzer case is not the
only case in the last year or two with the potential to significantly impact
the open source licensor's ability to rely on injunctive relief.
The eBay v. MercExchange case is now beginning to filter through the
circuits and injunctions in patent and copyright cases are no longer
automatic. See, e.g., In Christopher Phelps & Associates, LLC v. Galloway,
477 F.3d 128 at page 139 (4th Cir., 2007), where the Fourth Circuit stated:
Insofar as Phelps & Associates suggests that it is entitled to injunctive
relief, we reject the argument. See eBay Inc. v. MercExchange, L.L.C., ___
U.S. ___, ___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). In eBay, the
Supreme Court rejected any notion that "an injunction automatically follows
a determination that a copyright has been infringed." 126 S.Ct. at 1840
(reversing the Federal Circuit, which had articulated "a `general rule,'
unique to patent disputes, `that a permanent injunction will issue once
infringement and validity have been adjudged'"). The Supreme Court
reaffirmed the traditional showing that a plaintiff must make to obtain a
permanent injunction in any type of case, including a patent or copyright
case:
A plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance
of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
Id. at 1839. Moreover, the Court reiterated that even upon this showing,
whether to grant the injunction still remains in the "equitable discretion"
of the court.
-------
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/01/07
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/01/07
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Rjack, 2009/01/07
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, amicus_curious, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion,
Alexander Terekhov <=
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Rjack, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Rjack, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Rjack, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, David Kastrup, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Rjack, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, David Kastrup, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, ZnU, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/01/08
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, David Kastrup, 2009/01/08